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Proportionality Challenge to Lifetime Postrelease

Recently, the ADO has challenged the constitutionality of the lifetime postrelease supervision term for ?sexually violent offenses? mandated by K.S.A. 22-3717(d)(1)(G). The argument is that the lifetime postrelease is a life sentence, and under the facts of the case, may be disproportionate punishment and thus cruel and unusual punishment under Section 9 of the Kansas Constitution Bill of Rights and/or the Eighth Amendment of the U.S. Constitution. The KSC has recently emphasized that this type of argument must be litigated in the district court in order to be raised on appeal.

Often, a very sympathetic defendant will get a downward durational departure for a ?sexually violent crime? but then be ordered to lifetime postrelease supervision under K.S.A. 22-3717(d)(1)(G). This person will forever be under the thumb of the State. Even if the offense was committed when the defendant was a teenager, they may never again own a firearm (a constitutional right), may never retire - unless approved by their parole officer (requirement to maintain employment), may never enjoy a glass of champagne at their daughter?s wedding, may never again go on vacation without prior approval, and must forever be subject to searches by their parole officer. If the defendant had simply intentionally murdered someone, they would only be required to comply with these postrelease conditions for 36 months.

The proportionality argument is that this lifetime postrelease sentence is unconstitutional under the three factors set forth in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). The first Freeman factor is based on the nature of the offense and character of the offender. Again, if the defendant has already received a downward durational departure, the circumstances of the crime and background of the defendant are probably better than the typical case. The second factor is whether more serious crimes are punished less severely. Once again, intentional second-degree murder of the same victim would get someone only 36 months postrelease. The third factor compares the punishment with the punishments in other states for the same conduct. None of these factors are dispositive.

In order to preserve this issue for appeal, the Freeman analysis should be litigated thoroughly in the district court, and the court should make specific factual findings regarding the factors.

Full post as published by Kansas Defenders on March 26, 2009 (boomark / email).